1. Applicant's Name: a. Application Date: 7 February 2020 b. Date Received: 18 February 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The former service member requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, an other than honorable discharge is unfair and excessive based on the facts and circumstances. Specifically, the applicant admitted to an accidental physical contact, which was immediately handled with recognition of the accident and an immediate apology. The applicant adamantly denied two other uncorroborated allegations against the applicant. There is nothing in the applicant's military or civilian history which supports the allegations. Multiple character references and witness testimony indicate the exact opposite of the allegations. The applicant proudly service in the Army including the tour in Iraq and the applicant's leadership as mission commander at Fort Dix. The applicant's military and civilian history do not support the accusations. The accuser wrote a letter to the board indicating the separation was not the individual's desire based on the facts. The accuser stated the accuser did not believe the applicant should be discharged from the Army. The applicant does not believe the applicant had a fair hearing and the decision was already made with extreme prejudice before the hearing. The applicant believes this bias may have been increased in the General Officer Memorandum of Reprimand because the applicant did not provide rebuttal information based on the shifting status from Active Component to U. S. Army Reserve and reduced Active Component Trial Defense Services support. Arguments to this effect were made during a Show Cause Board, but the applicant believes the arguments were not sufficiently considered. The applicant and the family request the attached documents be reviewed and the discharge upgraded. The applicant was recently diagnosed with Stage 4 Tumor, Glioblastoma Multiforme. Finally, there was a discussion about post-traumatic stress disorder at the Show Cause Board. The applicant further details the contentions in a self- authored statement submitted with the application entitled "Post-Traumatic Stress Disorder." b. Board Type and Decision: In a records review conducted on 8 February 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's brain tumor mitigated the out-of-character sexual misconduct. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 15-180, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to KFF. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Moral of Professional Dereliction / AR 135-175, Paragraph 2-13 / NA / Under Other Than Honorable Conditions b. Date of Discharge: 10 October 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Legal Consultation Date: NIF (4) Board of Officers / Recommendation: NIF (5) GOSCA Recommendation Date: NIF (6) Army Human Resources Command Date / Decision: NIF 4. SERVICE DETAILS: a. Date / Period of Appointment: 16 February 2001 / Indefinite b. Age at Appointment / Education: 33 / Doctor of Dental Surgery c. Highest Grade Achieved / MOS / Total Service: O-6 / 63A10, General Dentist / 17 years, 7 months, 25 days d. Prior Service / Characterizations: USAR, 16 February 2001 - 4 January 2004 / NA AD, 5 January 2004 - 1 May 2004 / HD (Concurrent Service) USAR, 2 May 2004 - 24 March 2009 / NA AD, 25 March 2009 -26 July 2009 / HD (Concurrent Service) USAR, 27 July 2009 - 3 October 2013 / NA AD, 4 October 2013 - 3 October 2014 / HD (Concurrent Service) USAR, 4 October 2014 - 21 July 2016 (Concurrent Service) AD, 22 July 2016 -31 March 2017 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (4 April 2009 -13 July 2009) f. Awards and Decorations: MSM, ARCOM, AAM, ARCAM-3, NDSM, GWOTSM, ICM- CS, ASR, AFRM-MD g. Performance Ratings: 16 February 2001 - 21 February 2009 / Fully Qualified 22 February 2009 - 9 July 2009 / Best Qualified 10 July 2009 - 9 July 2010 / Fully Qualified 10 July 2010 - 9 July 2011 / Fully Qualified 10 July 2011 - 3 October 2013 / Best Qualified 4 October 2013 - 30 June 2014 / NIF 1 July 2014 - 2 May 2015 / Highly Qualified 3 May 2015 - 1 May 2016 / Highly Qualified 15 July 2016 - 17 March 2017 / Unsatisfactory 18 March 2017 - 17 March 2018 / Unsatisfactory h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report - SIR (Category 3) Final, dated 24 January 2017, reflects an investigation established probable cause existed to believe the applicant committed the offense of Abusive Sexual Contact between 1 November and 1 December 2016. On 2 December 2016, the applicant was interviewed and admitted to inappropriately touching [redacted] and stated the applicant apologized immediately after the contact. [Redacted] reported three incidents of contact, which included the applicant pressing the groin area against [redacted] arm; slapping [redacted] on the buttocks; and the applicant placing a finger in [redacted] back pocket of [redacted] scrubs bottoms and pulled [redacted] towards the applicant while the applicant was seated at the computer. General Officer Memorandum Of Reprimand, dated 2 February 2017, reflects investigation revealed on multiple occasions, while at work, the applicant committed abusive sexual contact upon a civilian employee. Orders 18-254-00008, dated 11 September 2018, reflect the applicant was to be discharged from the United States Army Reserve on 10 October 2018. The applicant elected to Resign in Lieu of Involuntary Separation in accordance with AR 135-175, paragraph 2-13. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; separation orders; Department of the Army Photo; two family photos; military biographical information; Officer Record Brief; civilian résumé; diplomas; awards and certificates; self-authored statement regarding PTSD diagnosis; letter from the alleged accuser; Regional Defense Counsel letter; numerous character references, medical documents. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. d. Army Regulation 135-175, Separation of Officers, provides policy, criteria, and procedures for the separation officers of the Army National Guard (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. (1) Chapter 2, prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. (2) Paragraph 2-13, authorizes involuntary separation of an officer due to moral or professional dereliction. While not an all-inclusive list, existence of one of the following or similar conditions, at the standard of proof required by AR 15-6, authorizes a commander to initiate separation proceedings for moral or professional dereliction. Officers discharged for any of the following reasons may receive an Honorable, General (Under Honorable Conditions), or Under Other Than Honorable conditions discharge: Discreditable failure, whether intentional or not, to meet personal financial obligations; Mismanagement of personal affairs, whether intentional or not, to the discredit of the Service; Intentional misrepresentation of facts in obtaining an appointment or in official statements or records; Acts of serious or recurring misconduct punishable by military or civilian authorities (including, but not limited to, acts committed while in a drunken or drug-intoxicated state, or meeting the criteria specified in paras 2-11c or 2-11d); Intentional neglect or failure; Conviction by a federal or state criminal court; Final conviction by a federal or state criminal court of a covered offense as specified in AR 27-10, para 24-2, or an attempt to commit a covered offense when the officer has not been punitively discharged for such a conviction; Conviction by a foreign court; Entry into a military service of a foreign government; Receipt of a "Relief for Cause" officer evaluation report involving acts of misconduct or moral or professional dereliction; Conduct or actions that result in the loss of a professional status; Failure of a course at a service school; The final denial or revocation of an officer's Secret security clearance; Conduct or actions by a WO resulting in a loss of special qualifications; Acts of child/spouse maltreatment or abuse and/or other acts of Family violence; and, Conduct unbecoming an officer. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant's Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The AMHRR is void of the complete facts and circumstances concerning the events which led to the applicant's discharge from the Army Reserve. The applicant's AMHRR record does contain a properly constituted discharge order: Orders 18-254-00008, dated 11 September 2018. The orders indicate the applicant elected to Resign in Lieu of Involuntary Separation in accordance with AR 135-175, paragraph 2-13. The applicant was discharged with a characterization of service of under other than honorable conditions. The applicant contends the discharge is excessive and the applicant did not have a fair hearing. It is unknown if the contention have merit because the facts and circumstances leading to the discharge are not contained in the AMHRR. The burden of proof remains with the former Soldier representative to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. The AMHRR is void of any hearing or board proceedings. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from service-connected PTSD. The applicant's AMHRR contains no documentation of a PTSD diagnosis. The applicant did not submit any evidence, other than the applicant's statement, indicating the applicant was diagnosed with service- connected PTSD. The applicant contends good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Diffuse, malignant tumor of the brain, PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the VA has service connected both potentially mitigating conditions. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating neurological condition, diffuse malignant glioblastoma multiforme. Given the natural history of glioblastoma multiforme, it is highly likely that the applicant's brain tumor began growing while the applicant was on active duty. Glioblastoma multiforme is an aggressive malignancy which is unresectable because it grows cancerous tendrils into all parts of the brain to include the frontal lobe (the area of the brain involved in impulse control, rational thought, judgment, and cognition) and the limbic system (the area of the brain responsible for aggressive and sexual impulses). Normally, the frontal lobes control the limbic system. However, in the presence of diffuse tumor infiltration, it is highly likely that this function was significantly impaired. Given this occurrence, it is the BH Advisor's opinion that the applicant's out-of- character sexual misconduct was the direct consequence of this undiagnosed brain malignancy and, as such, is mitigated by said brain tumor. As for the diagnosis of PTSD, this condition does not mitigate the applicant's sexual misconduct as such behavior is not part of the natural sequelae or history of PTSD. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's brain tumor outweighed the sexual misconduct basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the discharge is excessive and the applicant did not have a fair hearing. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's brain tumor outweighed the sexual misconduct basis for separation. (2) The applicant contends suffering from service-connected PTSD. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's brain tumor outweighed the sexual misconduct basis for separation. (3) The applicant contends good service, including a combat tour. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's brain tumor outweighed the sexual misconduct basis for separation. (4) The third party statements provided with the application speak highly of the applicant. The Board considered these statements in their deliberations. c. The Board the Board determined the discharge is inequitable based on the applicant's brain tumor mitigated the out-of-character sexual misconduct. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 15-180, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to KFF. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's brain tumor outweighed the sexual misconduct - which the Board found in medical records and used as the accepted basis for separation since the complete facts and circumstances surrounding the discharge are not known due to the absence of the separation packet. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is KFF. (3) As there was no RE-code listed on the applicant's discharge paperwork, due to being an Officer, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / KFF d. Change Authority to: AR 15-180 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200004608 1